SC critical of magistrate ordering probe in Rahul case

The Supreme Court was today critical of the trial court in Maharashtra asking the cops to probe the criminal defamation complaint lodged against Congress vice president Rahul Gandhi for his remarks allegedly accusing RSS for assassination of Mahatma Gandhi.

The apex court said “prima facie the procedure of taking cognizance by the judicial magistrate is erroneous” as police has no role in a private criminal defamation case and it cannot register an FIR.

It said magistrates cannot ask the police to investigate a private criminal defamation complaint as it is the complainant who needs to prove the case.

The remarks finding fault with the trial court order comes a week after the same bench of Justices Dipak Misra and R F Nariman had said that Gandhi should not have resorted to “collective denunciation” of an organisation (RSS) and will have to face trial if he does not express regret.

Gandhi, facing a defamation complaint for his remarks allegedly accusing RSS for assassination of Mahatma Gandhi, has sought its quashing from the apex court.

“If the process of taking cognizance is erroneous then the matter can be remanded back but not for the ambitious plea of quashing,” the bench observed.

Today, the bench at the outset, referred to an earlier judgement delivered on a batch of pleas, including the one filed by BJP leader Subramanian Swamy and Gandhi each, challenging the constitutional validity of penal defamation law and said that police cannot be asked by judicial magistrates to probe a private defamation complaint.

“We have said in the Subramanium Swamy case that the police has no role in private criminal complaints…whatever has to be established, it has to be established by the man (complainant) himself. The magistrates cannot call for a report from the police,” the bench said.

It asked senior advocate Kapil Sibal, appearing for the Congress leader, to read relevant portions of the judgemnent, penned by Justice Misra, in the Subramanian Swamy case, dealing with the power of police and magistrates in criminal defamation cases.

“Police has no role in criminal defamation. It cannot lodge an FIR and a Magistrate cannot seek a inquiry report from police under sections 156 (3) and 202 of the Code of Criminal Procedure. The Magistrate has to himself make inquiry into the allegations…this is altogether a different process,” it said. .